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2004

David Cole, Enemy Aliens: Double Standards andConstitutional Freedoms in the War on Terrorism(2003)Elizabeth M. McCormickUniversity of Tulsa, College of Law, elizabeth-mccormick@utulsa.edu

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Recommended Citation19 Conn. J. Intl. L. 423 (2004) (book review).

BOOK REVIEW ESSAY

ENEMY ALIENS:DOUBLE STANDARDS AND CONSTITUTIONAL

FREEDOMS IN THE WAR ON TERRORISM

By David Cole. New York: The New Press, 2003, Pp. 256.

Elizabeth M. McCormick"

INTRODUCTION

In his State of the Union address January 20, 2004, President Bush declaredthat the United States is a nation called to great responsibilities. "The greatest ofthese responsibilities," he continued, "is the active defense of the Americanpeople."' With this introduction, the President set the stage for the central theme ofhis address to Congress and the nation - the preeminent role of the United States inthe war on terrorism. The President recognized the efforts of "hundreds ofthousands of American servicemen and women deployed across the world in thewar on terror," of law enforcement and intelligence agencies tracking terroristthreats, and of the new Department of Homeland Security patrolling our coasts andborders, and concluded that "their vigilance is protecting America." The Presidentcautioned, nonetheless, against false hopes that the danger is behind us. "We mustcontinue to give homeland security and law enforcement personnel every tool theyneed to defend us. And one of those essential tools is the Patriot Act, which allowsFederal law enforcement to better share information, to track terrorists, to disrupttheir cells, and to seize their assets."2

The President's focus in his State of the Union address on the United States'efforts to fight terrorism at home and abroad is not surprising. Since September 11,2001, Americans have been understandably preoccupied with what theirgovernment is doing to protect them from future terrorist attacks. While their fearshave on some level been assuaged by reports of the capture of certain Taliban andAl Qaeda leaders, by the creation of a new Department of Homeland Security toprotect the nation against future terrorist threats, and by heightened security at

* B.A., Fordharn University, 1985; M.A., New York University, 1988; J.D., GeorgetownUniversity Law Center, 1994; William R. Davis Clinical Fellow, University of Connecticut School ofLaw.

1. President George W. Bush, State of the Union Address (Jan. 20, 2004), available athttp://www.whitehouse.gov/news/releases2004/01/printt2004Ol2O-7.htm [hereinafter 2004 State of theUnion Address).

2. Id.

CONNECTICUT JOURNAL OF INT'L LAW

airports and borders, many Americans have questioned whether the government'sresponses to the terror threat have been effective or appropriate.3 Some havecriticized the United States for taking actions in the name of national security thatignore the interests of the international community and violate international law.'Still others have argued that the government's efforts to enhance security haveresulted in an unacceptable loss of privacy and liberty for many people living in theUnited States.' Indeed, President Bush's assertion that "this great republic will leadthe cause of freedom," has been challenged by many who believe that the UnitedStates' war on terrorism has instead undermined its legitimacy as a champion ofliberty, democracy, and human rights.

David Cole's ENEMY ALIENS, DOUBLE STANDARDS AND CONSTITUTIONALFREEDOMS IN THE WAR ON TERRORISM, sets forth a comprehensive and intelligentassessment of the ways in which the war on terror has put the United States and itscitizens at risk.6 Cole argues persuasively that actions taken by the United Statessince September 11 in the name of national security - rather than achieving a"peace founded upon the dignity and rights of every man and woman,"7 - havesacrificed the liberties of non-citizens and will ultimately jeopardize the liberty andsecurity of all citizens.

When a democratic society strikes the balance between liberty andsecurity in ways that impose the costs of security measures equally on all,one might be relatively confident that the political process will achieve aproper balance. Since September 11, we have repeatedly done preciselythe opposite, sacrificing the rights of a minority group - noncitizens, and

3. See MIGRATION POLICY INSTITUTE, AMERICA'S CHALLENGE: DOMESTIC SECURITY, CIVILLIBERTIES, AND NATIONAL UNITY AFTER SEPTEMBER 11 (2003) [hereinafter AMERICA'S CHALLENGE];Donald Kerwin, Counterterrorism and Immigrant Rights Two Years Later, 80 No. 39 INTERPRETERRELEASES 1401 (Oct. 13, 2003); Cam Simpson, Flynn McRoberts and Liz Sly, Immigration CrackdownShatters Muslim's Lives, CHI. TRIB., Nov. 16, 2003, at 1.

4. See LAWYERS' COMMITTEE FOR HUMAN RIGHTS, ASSESSING THE NEW NORMAL: LIBERTYAND SECURITY FOR THE POST-SEPTEMBER 11 UNITED STATES 73-88 (2003) [hereinafter LAWYERS'COMMITTEE FOR HUMAN RIGHTS, ASSESSING THE NEW NORMAL]. In response to such criticismsrelated to the wars in Afghanistan and Iraq, President Bush declared, "From the beginning America hassought international support for our operations in Afghanistan and Iraq, and we have gained muchsupport. There is a difference, however, between leading a coalition of many nations, and submitting tothe objections of a few. America will never seek a permission slip to defend the security of our country."2004 State of the Union Address, supra note I (emphasis added).

5. See U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE INSPECTOR GENERAL, THE SEPTEMBER11 DETAINEES: A REVIEW OF THE TREATMENT OF ALIENS HELD ON IMMIGRATION CHARGES INCONNECTION WITH THE INVESTIGATION OF THE SEPTEMBER 11 ATTACKS (April 2003)(released June 2,2003) [hereinafter INSPECTOR GENERAL'S REPORT]; LAWYERS' COMMITTEE FOR HUMAN RIGHTS,ASSESSING THE NEW NORMA, supra note 4; Human Rights Watch, Presumption of Guilt: HumanRights Abuses of Post-September )) Detainees (Aug. 2002).

6. DAVID COLE, ENEMY ALIENS, DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS INTHE WAR ON TERRORISM (2003). David Cole is a professor at Georgetown University Law Center, avolunteer staff attorney with the Center for Constitutional Rights, and legal affairs correspondent forThe Nation.

7. 2004 State of the Union Address, supra note 1.

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BOOK REVIEW ESSAY: ENEMYALIENS

especially Arab and Muslim noncitizens - in the name of the majority'ssecurity interests."'

Although Cole recognizes that mediating the tension between liberty and securityon the backs of non-citizens is politically tempting because citizens do not losetheir rights and non-citizens do not vote, he presents a compelling four-partargument for resisting this temptation and, instead, asking citizens and non-citizensto bear any costs of enhanced security equally.

First, the distinction drawn between citizen and non-citizen is illusory in thelong run and ultimately, Cole argues, all citizens' rights are in the balance when thegovernment selectively sacrifices foreign-nationals' liberties in the name ofnational security. Second, a history of overreaction in times of crisis suggests thatselectively burdening the aliens among us with a loss of fundamental rights is amove that we will undoubtedly regret in the long run. According to Cole, we caninstead avoid that cycle of overreaction and apology by determining from thebeginning to strike the balance between security and liberty equitably for all.Third, the double standard is counter-productive as a security measure because itundermines the legitimacy, both in the United States and in the internationalcommunity, of the government's efforts to combat terrorism. Cole's fourth andmost compelling argument for refusing to engage in the double standard forcitizens and non-citizens is that it is morally and constitutionally wrong. The rightsand freedoms of non-citizens which have been restricted, Cole argues, are humanrights, not privileges of citizenship. Our ability as a nation to recognize and protectthese rights for citizens and non-citizens alike will, he promises, ultimately be thetest of "the character of America's future."

THEIR LIBERTY, OUR SECURITY

The disproportionate burden borne by non-citizens since September 11 inexchange for enhanced security is beyond cavil.' Non-citizens have been subjectedto interviews, registration, automatic detention, and removal. They have been triedin secret and subjected to lengthy and coercive interrogation without benefit of

8. COLE, supra note 6, at 5.9. An assessment of whether or not these measures actually serve to enhance security is central

to Cole's argument against the double standard. See also AMERICA'S CHALLENGE, supra note 3, at 7("The U.S. government's harsh measures against immigrants since September 11 have failed to make ussafer, have violated our fundamental civil liberties, and have undermined national security.") See alsoSimpson, McRoberts and Sly, supra note 3 (assessing the impact of post-9/l 1 immigration policiesaimed at men from Muslim countries); Stevenson Jacobs, Terror Suspects Reach 2-Year Mark AtGuantanamo - Prisoners Still Waiting For Charges, Trials, S. FLA. SUN-SENTINEL, Jan. 11, 2004, at A7(describing the indefinite detention of hundreds of foreign nationals designated as enemy combatants -including three boys aged 13 to 15 - at Camp X-Ray in Guantanamo Bay, Cuba); Carol Morello, This isthe First Time I Saw the American Sky, WASH. POST, Feb. 3, 2004, at B 1 (describing the prolongeddetention of a Tibetan nun seeking asylum in the U.S. as part of a post-9/l1 Department of HomelandSecurity policy permitting the automatic, arbitrary and open-ended detention of asylum-seekers);INSPECTOR GENERAL'S REPORT, supra note 5 (detailing verbal and physical abuse of immigrationdetainees, overly restricted access to counsel, and prolonged detention without charge or access to bail).

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counsel. They have been excluded or removed from the United States based onspeech or wholly innocent political associations. They have been subjected toindefinite detention on the whim of the Attorney General. These "securitymeasures" were the subject of little protest, Cole argues, because they were aimedat non-citizens. Where the government, on the other hand, has taken steps toenhance security that would have had a broad impact on the liberties of UnitedStates citizens, the response has been entirely different. Indeed, though manyAmericans expressed a willingness after September 11 to sacrifice civil liberties formore security, the sacrifices demanded so far have been primarily from non-citizens, and Cole offers example after shameful example of how the war on terrorhas been waged largely through measures targeting foreign nationals.

The Immigration Law Nostrum

Beginning with the earliest days of the war on terror, Cole describes the JusticeDepartment's efforts to use immigration law as a pretext to apprehend and detainpeople who might commit terrorist acts in the future. Attorney General JohnAshcroft's strategy of preventive detention, aimed almost entirely at non-citizens,emerges as one of the primary weapons in the war on terror. It is a strategy Colerecognizes as a failure on a couple of levels.

First, the preventive detention program has proven to be an absurdly bluntinstrument with which to identify and apprehend terrorists. Though the actualnumbers are impossible to ascertain because the government has been generallyunwilling to disclose even the most basic information about the detainees," Coleestimates that more than five thousand people had been detained by May 2003.12

10. Operation TIPS (Terrorism Information and Prevention System), which involved a plan torecruit millions of private individuals to snoop on their fellow citizens and share what they found withthe Department of Justice, was ultimately deleted from the final version of the Homeland Security Act.Republican Majority Leader Dick Armey, who led the fight against TIPS, declared that he would notallow a law enabling "Americans to spy on one another." Nat Hentoff, The Death of Operation TIPS,VILLAGE VoicE, Dec. 13, 2002, at http:lwww.villagevoice.comlissueslO2511hentoff.php. Vocal publiccriticism led to a similar fate for a proposal for national identity cards for citizens and the application ofthe Pentagon's "Total Information Awareness" program to citizens. Cole, supra note 6, at 6.

11. In response to these secret arrests, numerous public interest groups filed a lawsuit under theFreedom of Information Act, 5 U.S.C. § 552, and the First Amendment, to force disclosure of thenumber, names, locations, and lawyers of people arrested in the post-September 11 terror investigations.See Ctr. for Nat'l Sec. Studies v. U.S. Dept. of Justice, 215 F. Supp. 2d. 94 (D. D.C. 2002). Thegovernment argued that disclosure of the information would threaten national security because it wouldinform terrorist organizations which of their members had been apprehended. The United States DistrictCourt for the District of Columbia ruled that the detainees' identities had to be disclosed, rejecting thegovernment's argument that a release of diverse pieces of information about the detainees would permitthe terrorists to piece the government's anti-terrorism strategy together as in a "mosaic." Id. The Courtof Appeals reversed, holding that the "judiciary is in an extremely poor position to second-guess theexecutive's judgment in this area of national security." Ctr. for Nat'l Sec. Studies v. U.S. Dept. ofJustice, 331 F.3d 918, 928 (D.C. Cir. 2003), cert. denied 124 S. Ct. 1041 (2004).

12. This number includes people arrested in connection with a Special Registration Programdirected at Arab and Muslim non-citizens and the Absconder Apprehension Initiative, which gavepriority to tracking down and removing the 6000 Arabs and Muslims among the more than 300,000aliens in the United States with outstanding removal orders.

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Of these, not a single one has been charged with involvement in the events ofSeptember 11.3 Only five have been charged with terrorist-related crimes, threenon-citizens and two citizens. "[B]y the government's own account, nearly all ofthe thousands it has detained in the war on terrorism have turned out to havenothing to do with terrorism.' 4 The government's resources, Cole implies, wouldhave been more productively spent on non-immigration related anti-terrorinitiatives.'5

Cole next criticizes the Justice Department's use of the immigration law as apretext to target non-citizens, without any basis for suspecting them of terroristactivity. He points out that, despite the department's focus on foreign terrorists, themajority of those charged with terrorism crimes since September 11, like theperpetrator of the most deadly terrorist attack on United States soil beforeSeptember 11, Timothy McVeigh, were United States citizens. In other words,since it cannot be said that the terrorist threat comes entirely from abroad, thedecision to wage the war on terror against non-citizens in particular was misguidedand cynical. Cole goes on to describe the pretextual use of the immigration law asfollows:

the immigration law functions largely as does the traffic law for drug lawenforcement: it affords a convenient pretext for targeting millions ofindividuals. And just as the traffic laws facilitate "driving while black"enforcement, so the immigration law has permitted ethnic profiling. In thewake of September 11, Ashcroft targeted the Arab and Muslim immigrantcommunity, and stretched, twisted, exploited, altered and in manyinstances, violated immigration law to achieve his preventive detentiongoal.

16

This selective enforcement of the immigration laws has permitted thegovernment to take aliens into custody and detain them while they investigatesuspected terrorist activities. The alien might be brought in on a minor violationthat would otherwise be ignored by immigration officials, or he might be brought inand detained, at least initially, without even an allegation of any immigration

13. Zacarias Moussaoui, the supposed twentieth hijacker, was arrested before September 11.Sarah Downey, Who is Zacarias Moussaoui?, NEWSWEEK, Dec. 14, 2001, at http://msnbc.msn.com/id/3067363.

14. Cole, supra note 6, at 26. Cole has even suggested that, given the abysmal success rate ofthe preventive detention program, it is in fact only because his targets are foreign nationals and notcitizens that John Ashcroft still has a job. David Cole, Terrorism's Heritage? Legislative and ExecutiveResponses to Terrorism and Their Constitutional Ramifications, Remarks at Co-Sponsored Program ofSections on Constitutional Law and Immigration Law, Association of American Law Schools AnnualMeeting (Jan. 3, 2004).

15. See AMERICA'S CHALLENGE, supra note 3, at 7 ("Our research indicates that thegovernment's major successes in apprehending terrorists have not come from post-September 11immigration initiatives but from other efforts such as international intelligence activities, lawenforcement cooperation, and information provided by arrests made abroad.")

16. Cole, supra note 6, at 24-25.

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infraction. When existing immigration law has not offered the government enoughflexibility to accomplish its enforcement and intelligence mission, the law has beenchanged. For example, a post-September 11 amendment to the immigrationregulations allows detention without charge for up to forty-eight hours and for "anadditional reasonable period of time" in cases of emergency or other extraordinarycircumstance. 7 Prior to that amendment, the regulations required a determinationon charges and on custody or release within twenty-four hours of the warrantlessarrest of an alien.'" Another new regulation allows counsel for the Department ofHomeland Security, in certain cases, to keep an alien in custody after animmigration judge orders release by simply asserting that DHS will file an appeal. 9

The release order is automatically stayed, regardless of the likelihood that DHSwill succeed on appeal. Regulations like these, Cole suggests, exemplify theusefulness of the immigration laws as a pretext. That is, the use of immigrationlaw and procedures for preventive detention allows the government to avoidconstitutional requirements of criminal law procedures -- access to courts,representation by counsel, probable cause hearings, public access, and access tobail. 20

Even commentators who might disagree with Cole's criticisms of the use ofimmigration law as a pretext have recognized the potential for abuse that over-reliance on immigration detention as a response to terrorism presents. DavidMartin, Professor of Law at the University of Virginia and former INS GeneralCounsel, rejects the view that arresting aliens who have overstayed visas or enteredthe United States without inspection is merely a technical or pretextual use of theimmigration laws.2 ' "Those whose immigration violations are unearthed because ofenforcement actions started for other purposes, such as steps against terrorism,have no legitimate complaint if they are then placed into removal proceedings,"

17. See 8 C.F.R. § 287.3(d).18. See 8 C.F.R. § 287.3(d), 62 Fed. Reg. 10390, Mar. 6, 1997. ("Custody procedures. Unless

voluntary departure has been granted pursuant to subpart C of 8 CFR part 240, a determination will bemade within 24 hours of the arrest whether the alien will be continued in custody or released on bond orrecognizance and whether a notice to appear and warrant of arrest as prescribed in 8 CFR parts 236 and239 will be issued.")

19. 8 C.F.R. § 1003.19(h)(4)(i)(2)("Automatic stay in certain cases. In any case in which thedistrict director has determined that an alien should not be released or has set a bond of $10,000 ormore, any order of the immigration judge authorizing release (on bond or otherwise) shall be stayedupon the Service's filing of a Notice of Service Intent to Appeal Custody Redetermination... and shallremain in abeyance pending decision of the appeal by the Board of Immigration Appeals. The stay shalllapse if the Service fails to file a notice of appeal with the Board... within ten business days of theissuance of the order of the immigration judge.")

20. The Center for Constitutional Rights has filed a lawsuit on behalf of non-citizen detaineesheld after September 11. The complaint alleges that plaintiffs were detained despite having receivedand accepted deportation orders and were subjected to severe conditions during detention, includingbeating, verbal abuse, solitary confinement and denial of right to religious practice. Turkmen v.Ashcroft, CV-02-2307 (E.D.N.Y., second amended complaint filed June 18, 2003).

21. Statement of David Martin to the National Commission on Terrorist Attacks Upon the UnitedStates, Dec. 8, 2003, at http://www.9-Ilcommission.gov/hearings/hearing6/witness- martin.htm (lastvisited Feb. 29, 2004) [hereinafter Martin Statement to National Commission on Terrorist Attacks].

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Martin argues.22 Nevertheless, noting the Supreme Court's affirmation in Zadvydasv. Davis3 that "freedom from imprisonment . . . lies at the heart of the liberty that[the Due Process] Clause protects," Martin has concluded that "the government'suse of detention after September 11 often fell short of this standard . . .Manytimes the Department, although initially justified in its use of detention, did notfollow through with needed measures to file charges in a timely fashion, to keepdetention to a minimum, or to release or deport promptly those whose continueddetention should not have been seen as justifiable.""4 Referring to the amendmentextending the permissible pre-charge detention period, Martin calls for its repealand notes that "[e]scape hatches, especially ones bounded only by vague terms like'reasonable period' simply invite sloppy implementation and departure from thelimiting principles that should govern the use of detention."' Similarly, herecommends revisiting the regulation authorizing automatic stays of release orders,because of indications that it was "being used routinely and without carefulcalculation by the enforcement agencies of the individual merits that led the[immigration judge] to reduce bond in the first place." 6 Thus, while Martinbelieves that it is perfectly legitimate to use the immigration laws to remove aliensfrom the United States who might be involved in terrorism," he recognizes, likeCole, that these same aliens are entitled to a full and fair process for determiningwhether they should be detained or removed.

Unfortunately, a lack of access to information about the government's terrorinvestigations has, at a minimum, made it difficult to determine to what extentaliens targeted by these investigations are being afforded due process. If secrecyhas been a key component in the government's war on terror in general,28 it hasbeen no less important, Cole contends, in the context of the preventive detentionprogram. Ten days after September 11, Chief Immigration Judge Michael Creppy,at the direction of the Attorney General, issued a memo to all immigration judges

22. Id.23. 533 U.S. 678 (2001)(holding, in a review of habeas petitions brought by aliens held in INS

custody well beyond the mandated 90 day post-removal order period, that indefinite post-removaldetention is not permitted).

24. Martin Statement to National Commission on Terrorist Attacks, supra note 21, at 5.25. Id.26. Id. at 7.27. "When the immigration agency is seeking only deportation as the ultimate sanction, it is simply

good government to file only the simplest and most straightforward charge - typically an overstay orEWI charge, which can be proven from government records or the absence thereof... Terrorism chargespose, in contrast, significant challenges of case management and proof... There is simply no point inadding those complications if there is another easily provable charge. The person's removal from thecountry is the same whether the charge is overstay or terrorism." Id. at 4.

28. See LAWYERS' COMMITTEE FOR HUMAN RIGHTS, ASSESSING THE NEW NORMAL, supra note4, at iii. ('*The two years since September 11 have seen a shift away from the core U.S. presumption ofaccess that is essential to democratic government - the presumption that government is largely open topublic scrutiny.. .Today the default in America has become just the opposite - the work of the executivebranch increasingly is conducted in secret.")

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with "special instructions for cases requiring additional security."2 9 Among otherthings the memo ordered that all cases designated as of "special interest" to theDepartment would be conducted in secret, with no visitors, family, or presspermitted to be present during hearings, and prohibited any release of informationabout the case, including even the confirmation or denial that the case was on thedocket.3 This order was contrary to the usual practice in Immigration Court ofallowing public and press access in the absence of an individualized determinationby an immigration judge to close a hearing to protect the interests of a witness,party or the public. Although the government asserted that the order was based onboth the privacy interests of the detainees and national security interests, Colerejects this explanation for a couple of reasons." First, in most of the "specialinterest" cases, there was no classified information involved.32 Second, the orderdid not prohibit detainees or their lawyers from releasing information about aspecial interest case or hearing and, as a rule, the government took no steps tootherwise prevent disclosure of case related information. Despite the allegedconcerns about national security, Cole argues, "the government itself did not takethe steps one would fully expect it to take were disclosure of the informationpresented at the hearings truly a threat to national security. 3 3 Cole suggests thatthe real motivation for the secrecy was public relations. Simply put, thegovernment wanted to keep the public from discovering that thousands of peoplehad been locked up for no good reason and that the government's broadly cast nethad yielded no suspects.' Such a revelation would, at a minimum, reflect badly onthe government's efforts in the war on terror and undermine the public'sconfidence in the government's ability to protect them.33

29. Memorandum from Chief Immigration Judge Michael Creppy to All Immigration Judges Re:Cases Requiring Special Procedures (Sept. 21, 2001)(relaying details of order from Attorney GeneralAshcroft)(on file with author).

30. Id.31. Cole is not alone in his criticism of secret hearings. Lawsuits were filed in federal courts in

New Jersey and Michigan seeking an order requiring that the hearings be open, with mixed results. SeeDetroit Free Press v. Ashcroft, 195 F. Supp. 2d. 937 (E.D. Mich. 2002), aff4 303 F.3d 681 (6th Cir.2002)(affirming district court's grant of an injunction prohibiting the closing of the hearings). But seeNorth Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002)(reversing district courtdecision enjoining the Attorney General from denying public access to immigration hearings).

32. Cole reports that none of the 611 special interest proceedings before May 2002 involvedclassified information. Cole, supra note 6, at 27.

33. Id.34. Cole suggests that the secrecy has not, in any event, been effective as a public relations tool,

and others have suggested that the Department's decision to close immigration hearings "only increasedsuspicion that Arab- and Muslim-Americans were being treated under a different standard of dueprocess." See AMERICA'S CHALLENGE, supra note 3, at 9-10.

35. Cole, supra note 6, at 30. In the end, secret hearings were not enough to protect the publicimage of the government's preventive detention program. In June 2003, the Inspector General of theJustice Department issued a report highly critical of the Justice Department's post-September 11detention policies and practices. See INSPECTOR GENERAL'S REPORT, supra note 5. The reportdocuments numerous abuses related, inter alia, to the classification of detainees as "of interest," theprocedures for notice of charges, the clearance process, bond and removal issues, and conditions ofdetention. The report alleges, among other things, that many detainees were subjected to physical andverbal abuse, unjustifiably denied bail, detained for unduly long periods, and refused access to counsel.

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Targeting Enemy Combatants

The government has been similarly interested in maintaining a veil of secrecywith regard to the detention and treatment of hundreds of foreign nationals held at aUnited States military base in Guantanamo Bay, Cuba. These detainees, allcaptured as part of the war on terror, and purportedly taken into custody for theirconnections with Al Qaeda or the Taliban, have been held incommunicado, withoutaccess to counsel, without charge, and without any kind of hearing - some for morethan two years. 6 The detention, according to the Bush administration, is pursuantto the military's power to capture and detain, during wartime, enemy combatants,37

and the President has ordered that anyone arrested as an enemy combatant in thewar on terror be tried by military tribunal. 8 Cole points out that, although theConstitution permits trial by military tribunal for citizens accused of fighting withthe enemy, at least initially the administration limited the application of militaryjustice to non-citizens. Cole suggests that this was a decision based on politics, notlaw, which in the end proved well-calculated. Though there was widespreadcondemnation from human rights organizations and the international community inconnection with the treatment of non-citizen "enemy combatants,"39 it was not untilmilitary custody was imposed on two United States citizens that there was acomparably critical reaction from the American public. According to Cole, theultimate extension of the enemy combatant designation to citizens Yasser Hamdiand Jose Padilla,' and the dramatically different public response to their arrests anddetention, is indicative not only of the willingness of the American public to allownon-citizens to disproportionately sacrifice their freedom for the security of the

36. Neil A. Lewis, U.S. Will Free 5 Britons Held At Cuba Base, N.Y. TIMES, Feb. 20, 2004, atA20.

37. Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Arts. 3-5,6 U.S.T. 3316, 75 U.N.T.S. 135. "Combatants and civilians are treated differently under humanitarianlaw. Combatants - defined principally as 'members of the armed forces of a Party to a conflict' - maybe held as prisoners of war until the end of the hostilities as a means of preventing them from returningto participate in the conflict." LAWYERS' COMMITTEE FOR HUMAN RIGHTS, ASSESSING THE NEW

NORMAL, supra note 4, at 51, citing Brief of Amici Curiae Experts on the Law of War (Judge PatriciaWald, et al.) in support of Petitioner-Appellee/Cross-Appellant Jose Padilla and Partial Affirmance andPartial Reversal, at 14; Padilla v. Rumsfeld, available at http://www.lchr.org/us law/padilla war exp.pdf(last visited Aug. 31, 2003).

38. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66Fed. Reg. 57833 (Nov. 13, 2001).

39. See U.S. Criticized on Guantanamo Prisoners, N.Y. TIMES, Jan. 10, 2004, athttp://www.kuwaitidetainees.org/medialAPO11004.htm (last visited Feb. 20, 2004); Richard Cohen,Lawless in Guantanamo, WASH. POST, Jan. 20, 2004, at A19; Guantanamo Inmates Get New Rights,BBC NEWS, Feb. 13, 2004, at http://news.bbc.co.uk.go/pr/fr/-21hiameicas/3487543.stm (last visitedFeb. 21, 2004).

40. Yasser Hamdi was allegedly captured on a battlefield in Afghanistan fighting for the Taliban.Jose Padilla was arrested in Chicago O'Hare Airport for allegedly planning to detonate a radioactive"dirty bomb" and meeting with members of Al Qaeda. Though not held at Guantanamo, both Hamdiand Padilla have been held incommunicado, without trial or charges, and denied access to counsel.Legal challenges to their detention are pending. See Hamdi v. Rumsfeld, 337 F.3d 335 (4th Cir. 2003),cert. granted 124 S.Ct. 981 (U.S. Jan. 9, 2004) (No. 03-6696); Padilla v. Rumsfeld, 352 F.3d 695 (2dCir. 2003), cert. granted 72 U.S.L.W. 3488 (U.S. Feb. 20, 2004) (No. 03-1027).

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majority, but also of the ease with which the government's distinction betweencitizen and non-citizen can be blurred in times of crisis. The political momentumwhich initially permitted the infringement of the rights of foreign nationals can alltoo quickly spin out of control, Cole argues, and take with it the freedoms ofcitizens and non-citizens alike.

As applied to both citizens and non-citizens, Cole argues that the governmenthas far exceeded its authority under the Geneva Convention to detain enemycombatants. The detainees, first of all, have not been afforded the minimal legalrights established for prisoners of war under the Convention, including the right toa hearing on the issue of whether or not they are enemy combatants." Given thenature of the untraditional war at issue, and the fact that, like Jose Padilla, many ofthose detained at Guantanamo were not captured on the battlefields ofAfghanistan,42 Cole suggests that it is not at all clear that all of the detainees areproper prisoners of war. Indeed, there is compelling evidence that many non-combatants may have been captured in the far-reaching hunt by the U.S. and itsallies for supporters of Al Qaeda and the Taliban 3 Cole points out that in the GulfWar, the military held nearly 1200 hearings to determine the status of prisoners andtwo thirds of those captured were ultimately determined to be non-combatants.Although none of the Guantanamo detainees have been provided with a hearing todetermine whether they are legitimately held, more than ninety have been releasedso far, the result of a "long and arduous intelligence process of deciding whoremains a danger and who can be released."' In view of the releases to date, aswell as the government's recent statement that some detainees could be held formany years," Cole's argument that the detainees are entitled to a hearing before acompetent tribunal to determine their status is all the more compelling.

Cole rejects the government's blanket assertion that all of those detained in thewar on terror are "unprivileged combatants" not entitled to the protected status ofprisoners of war. He asserts that President Bush's November 2001 order, callingfor the indefinite detention and trial by military tribunal of all persons apprehended

41. Geneva Convention Relative to the Treatment of Prisoners of War, supra note 37, at art. 5.Padilla and Hamdi have been able to obtain extremely limited judicial review of their detentions. InHamdi's case, the Court of Appeals concluded that because it was undisputed that Hamdi had beencaptured in "a zone of active combat in a foreign theater of conflict," the court could not question thegovernment's factual assertions that he is an enemy combatant. Hamdi, 337 F.3d at 345. In Padilla'scase, a three judge panel of the Second Circuit Court of Appeals ruled that the President had noauthority under the Constitution to imprison an American citizen as an enemy combatant without anycharge and without judicial review when he was arrested on U.S. soil, unarmed, and far from any fieldof combat. Padilla, 352 F.3d 695. The Supreme Court will hear the appeals in both cases this spring.

42. Among the approximately 650 detainees, there are nationals of forty countries arrested inAfghanistan, Bosnia, Gambia and, possibly, Mauritania. LAWYERS' COMMrrrEE FOR HUMAN RIGHTS,ASSESSING THE NEW NORMAL, supra note 4, at 53.

43. Id. at 54 (noting that families of many of the detainees insist that their detained relatives werehumanitarian workers and that some of those released appeared upwards of seventy years old).

44. Lewis, supra note 36.45. Id.

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in connection with the war on terror,' is in contravention of Convention provisionsthat prohibit the trial of prisoners of war for lawful acts committed during combat.With regard to the Taliban, the United States has taken the position that because thefighters did not wear uniforms distinguishing themselves from civilians and somemembers engaged in war crimes, the Taliban as a whole is not entitled to prisoner-of-war protections.4' A similar position has been taken with regard to members ofAl Quaeda.4 Cole points out that, even if defensible, "the administration's positionfails to entertain the very real possibility that some of the detainees may not havebeen involved in combat at all."49 Therefore, while the indefinite detention of theseso-called enemy combatants has been tolerated by the citizenry because it has forthe most part been "directed at someone other than themselves,"5 the detainees arenonetheless entitled to some process for determining their status.'

Cole is not alone in his demands for a fair process for the Guantanamodetainees. There has been a significant amount of public criticism, and a number oflegal challenges to the government's liberal use of the enemy combatant doctrine tojustify prolonged, incommunicado detention. The Lawyers' Committee for HumanRights has called for the U.S. government to carry out its obligations under theGeneva Convention to provide detainees with an individualized hearing in whichtheir status as civilians or prisoners of war may be determined, and to immediatelyrelease those determined not to have directly participated in armed conflict.52

Similarly, David Martin has called on the administration to remember that the lawsof war, which permit the preventive detention of captured combatants until the endof hostilities, bring with them certain fundamental protections, includingprotections designed to distinguish combatants from civilians. "At the very least,in the context of prolonged preventive detention, the principle [of distinction] callsfor an effective mechanism that gives detainees a timely opportunity to show thatthey are in fact innocent civilians and to win prompt release in that case."'" Habeascorpus petitions have been filed on behalf of a number of the detainees, seeking tocompel the government to reveal the legal basis for the detentions, and the Supreme

46. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism,supra note 38.

47. Press Secretary Ari Fleischer, Statement in the James S. Brady Briefing Room (Feb. 7,2002), available at http://www.us-mission.ch/press2002/0802fleischerdetainees.htm (last visited Feb.20, 2004) ("The Taliban have not effectively distinguished themselves from the civilian population ofAfghanistan. Moreover, they have not conducted their operations in accordance with the laws andcustoms of war. Instead, they have knowingly adopted and provided support to the unlawful terroristobjectives of the Al Qaeda.")

48. Id. ("Al Qaeda is an international terrorist group and cannot be considered a state party tothe Geneva Convention. Its members, therefore, are not covered by the Geneva Convention, and are notentitled to POW status under the Treaty.")

49. Cole, supra note 6, at 42 (emphasis in original).50. Id. at 4651. Id. at 43.52. LAWYERS' COMMIITEE FOR HUMAN RIGHTS, ASSESSING THE NEW NORMAL, supra note 4,

at 72.53. Martin Statement to National Commission on Terrorist Attacks, supra note 21, at 15.

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Court is expected to rule on the legality of the detentions before the summer.14 Inaddition, a request for precautionary measures from the Inter-AmericanCommission on Human Rights has been issued, urging the United States to takeurgent measures necessary to have the legal status of the detainees at GuantanamoBay determined by a competent tribunal. 5

While the administration continues to assert that those detained at Guantanamoare enemy combatants who pose a threat to the United States and its allies, and whohave no right to judicial review of their status, a significant number of the detaineeshave been released or are scheduled to be released in the near future.56 Whether ornot the releases were in fact prompted by the heightened public criticism or by theSupreme Court's decision to hear the detainees' appeals is a subject of somespeculation. 7 In any event it appears that, even though the administration still hasnot acknowledged that any of the detainees are in fact entitled to any protectionsunder the Geneva Convention, the releases may be part of "a message to the courtthat you can trust us in the government to deal fairly with these people."58 Coleanticipates that message and argues against allowing the exercise of uncheckedexecutive detention authority. Indeed, Cole explains, it is precisely because thegovernment has proven untrustworthy in the past that we should resist thetemptation to allow an expanded use of that detention power again.

RELIVING HISTORY

If we are not vigilantly aware of our actions and attitudes toward non-citizensin this war on terror, we are destined as a nation, Cole contends, to repeat the samemistakes we have made countless times in the past. These are mistakes that we willinevitably regret for a number of reasons, not the least of which is that "security

54. The cases have been consolidated and the petitions for writ of certiorari have been grantedfor the limited purpose of determining whether United States courts lack jurisdiction to considerchallenges to the legality of the detention of foreign nationals captured abroad in connection withhostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba. See Al Odah v. U.S., 321 F.3d1134 (D.C. Cir. Mar. 11, 2003), cert. granted, 72 U.S.L.W. 3327 (U.S. Nov. 10, 2003) (No. 03-343).

55. The United States has rejected the IAI4CR's recommendation, asserting that the IAHCRlacked jurisdiction to interpret the Geneva Convention and that, in any event, the precautionarymeasures were not necessary or appropriate because the legal status of the detainees is already clear -unlawful combatants not entitled to POW status. Response of the United States to Request forPrecautionary Measures - Detainees in Guantanamo Bay, Cuba (Apr. 15, 2002), available athttp://www.ccr-ny.org/v2/legal/september_ 1 th/docs/4-15-02GovemmentResponse.pdf.

56. In early December 2003, a government spokesperson announced that as many as 140detainees were scheduled to be released. Nancy Gibbs with Viveca Novak, Security breaches. Suicidaldetainees. A legal challenge heading to the Supreme Court. Welcome to Guantanamo, TIME MAG., Dec.8, 2003, at 40. By mid-February, more than 80 had been released and six more were scheduled forrelease. Lewis, supra note 36.

57. Upon hearing of a statement by U.S. officials that some detainees were there because theyhad been kidnapped by Afghan warlords and sold for the bounty the U.S. was offering for al-Qaeda andTaliban fighters, David Martin replied, "If this report is true, we should be ashamed that it has taken thislong, nearly two years in most such cases, to recognized and rectify the error." Martin Statement toNational Commission on Terrorist Attacks, supra note 21, at 15.

58. Lewis, supra note 36 (quoting Michael Ratner, Center for Constitutional Rights).

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measures targeted at immigrants have virtually always laid the groundwork forfuture deprivation of citizens' rights." 9

Before beginning a lengthy discussion of the United States' appalling historyof selectively targeting the aliens among us for a loss of rights and liberties, Coleexplains that ambivalence toward non-citizens has run deep in the Americanpsyche for generations. While on the one hand a nation of immigrants, proud ofour heritage and diversity, at the same time there exists a general suspicion ofimmigrants, "based on their racial, religious, and ethnic difference, and their radicalassociations and ideas."' As a result, "we have incarcerated and deported foreignnationals for their ideas, their beliefs, and the company they keep, while employingsummary procedures to do so."'" These measures were, according to Cole, initiallyuncontroversial precisely because they were targeted at foreign nationals, a groupeasily and frequently demonized in times of crisis. "Only when the government'stactics affected a sufficiently large number of citizens did the country recognize theerrors of its ways."62

From the Palmer Raids to the Japanese internment to the Cold War, Coletraces the history of America's overreaction to perceived security threats fromabroad with a pattern of overreaction and political repression aimed first at foreignnationals and inevitably extended across the citizen-noncitizen divide. Indeed,Cole suggests that, historically, anti-alien sentiment and tactics have been widelyexploited in the government's efforts to rationalize political repression. In otherwords, because it has proven relatively easy in times of national crisis to harnesspublic antipathy toward the foreigner among us, the government has been able togain public support for what would be intolerable restrictions on liberty if appliedto citizens, only to later extend the restriction to citizens:

Virtually every significant government security initiative implicating civilliberties - including penalizing speech, ethnic profiling, guilt byassociation, the use of administrative measures to avoid the safeguards ofthe criminal process, and preventive detention - has originated in ameasure targeted at non-citizens. The government has frequentlydefended such measures - legally and politically - by arguing that thethreat stems from abroad, and that non-citizens do not deserve the samerights and protections as U.S. citizens . . . But almost as inevitably,government officials have thereafter extended similar security measures toU.S. citizens. 63

Cole's discussion of the Japanese internment of World War H, undoubtedly themost extreme and shameful example of the historical pattern discussed above,

59. Cole, supra note 6, at 90.60. Id.61. Id.62. Id. at 87.63. Id. at 85.

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reveals both how easily the citizen-noncitizen distinction is breached, and how theextension of restrictive security measures to citizens is most readily accomplishedthrough the prism of race. Though carried out under the auspices of the EnemyAlien Act, the order for internment of persons of Japanese descent was extendedfrom the beginning to Japanese-Americans, as well as Japanese nationals. Onehundred ten thousand people were detained, seventy thousand of whom were U.S.citizens, and deemed to be presumptively loyal to Japan. Cole points out that noGerman-Americans or Italian-Americans were detained during this time, andsuggests that the ease with which Japanese-Americans were encompassed into thiscategory of enemy aliens is explained by racism. "The close interrelationshipbetween anti-Asian racism and anti-immigrant sentiment made the transition fromenemy alien to enemy-race disturbingly smooth."' That the government's motiveswere based on racist stereotypes is, according to Cole, substantiated by the fact thatnone of the Japanese-American detainees was ever charged with or convicted ofany crime of espionage, treason, or sabotage. Nevertheless, he acknowledges thatthe absence of evidence of criminal activity did not lessen the demands for theirinternment. "[I]n arguments that foreshadow the 'sleeper' theories advanced aboutAl Qaeda today, government officials argued that the very fact that Japanese aliensand citizens living among us had not taken any subversive action only underscoredhow dangerous they really were."6

Though in the end there is broad consensus that internment based on race ornational origin is wrong and that the Supreme Court decisions upholding thegovernment's anti-Japanese measures were wrongly decided, the Enemy Alien Acthas not been repealed. Because this act authorizes the prolonged detention, withoutconstitutional safeguards, of persons deemed dangerous based on a politicalopinion presumed from national origin, Cole suggests that perhaps we have notlearned a lesson from history, that we remain capable - even if not necessarilypoised - to once again scapegoat the non-citizen in times of fear and crisis. Hereminds us of the true lesson that needs to be learned from the tragedy of theJapanese internment: 'These propositions do not become wrong only when appliedto U.S. citizens, but are wrong as applied to any human being."'

The importance of this lesson is underscored by the fact that Fred Korematsu,a U.S. citizen imprisoned in a Utah internment camp during World War II, hasauthorized the submission to the Supreme Court of an amicus brief, in his name, onbehalf of non-citizens detained at Guantanamo." In 1942, Korematsu, then 22 and

64. Id. at 97.65. Id.66. Id. at 100.67. The brief was filed in the cases of See Hamdi v. Rumsfeld, 337 F.3d 335 (4th Cir. 2003),

cert. granted 124 S.Ct. 981 (U.S. Jan. 9, 2004) (No. 03-6696), A] dah v. U.S., 321 F.3d 1134 (D.C.Cir. Mar. 11, 2003), cert. granted, 72 U.S.L.W. 3327 (U.S. Nov. 10, 2003) (No. 03-343), and Rasul v.Bush, 215 F. Supp. 2d 55 (D. D.C. July 30, 2002), aff'd, Al Odah v. U.S., 321 F.3d 1134 (D.C. Cir.Mar. 11, 2003) (consolidated appeal), cert. grante4 Rasul v. Bush, 72 U.S.L.W. 3327 (U.S. Nov. 10,2003) (No. 03-334). Al Odah and Rasul are being held at the Guantanamo Bay facility in Cuba, andHamdi, a U.S. citizen, in a military brig in Virginia. Peter Schuler, Stone Writes Fred Korenatsu'sAmicus Brief As History Repeats, U. CHI. CHRON. (Nov. 6, 2003).

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working as a welder in an Oakland, California shipyard, refused to be put into aninternment camp. He was arrested, convicted, and ultimately sent to an internmentcamp in Utah, where he and his family remained for the duration of the war. InKorematsu v. United States,' the Supreme Court upheld his conviction, ruling thatbecause the United States was at war, the government could, on the grounds ofmilitary necessity, constitutionally intern him without a hearing and without anyadjudicative determination that he had done anything wrong. Korematsu's briefadmonishes the court that "in order to avoid repeating the mistakes of the past, theSupreme Court should make clear in these cases that the United States respectsfundamental constitutional and human rights - even in times of war. These casespresent the Supreme Court with a direct test of whether it will meet its deepestconstitutional responsibilities to uphold the law in a clear-eyed and courageousmanner."69 According to Professor Geoffrey Stone, who authored the brief onKorematsu's behalf, "Fred Korematsu has committed himself to ensuring thatAmericans do not forget the lessons of their own history."'

LEGITIMACY AND DOUBLE STANDARDS

Nous sommes tous Americains. We are all Americans. This was the headlinein Le Monde on September 13, 2001, a headline which expressed a sentimentshared by many across the world. "How can we not feel," the article began, "as inthe most grave moments of our history, profoundly linked with this people and thisnation, the United States, with whom we are so close and to whom we owefreedom, and therefore our solidarity." t The point of view reflected here was notunique. In the aftermath of the terrorist attacks, the United States enjoyed theoverwhelming support and compassion of the international community. Moreover,there was a sense that the only appropriate response was for the internationalcommunity to unite in its condemnation of these barbaric attacks and theirperpetrators. Almost immediately, however, it became clear that the United States'response to the attacks would fail on many levels to garner the support of many ofits allies. Indeed, perhaps the most troubling aspect of the United States' responsewas the perception that the United States was not particularly interested in reachingout to form the kinds of coalitions that might succeed in preventing anothermassive terrorist attack. Rather than seeking solidarity with its allies, Colesuggests that the United States ultimately squandered much of the good will itenjoyed after September 11 because it adopted a unilateral foreign policy and adouble standard imposing restrictions on the liberties of non-citizens that were notimposed on citizens. The resultant lack of legitimacy in the international

68. 323 U.S. 214 (1944).69. Schuler, supra note 67.70. Id.71. Jean Marie Colombani, Nous Sommes Tous Americains, LE MONDE, Sept. 13, 2001

(translation by author).

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community, as well as in foreign national communities in the United States, hasundermined rather than enhanced national security.

As an initial matter, Cole points out that many of the tactics undertaken afterSeptember 11 in the name of national security were, in addition to beingconstitutionally and morally objectionable, largely ineffective andcounterproductive as security measures. The massive arrests, interrogations, anddetentions of foreign nationals from predominantly Arab and Muslim nations didnot succeed in uncovering any substantial leads in the war on terror. This is notparticularly surprising, Cole notes, since ethnic profiling has been largelydiscredited as a law enforcement tool. Rather, the real danger of such methods isthat they waste valuable resources that would be better spent on law enforcementmeasures that focus on what a person has done or plans to do, rather than who theperson is:

The proxies of Arab or Muslim identity or nationality are so inexact andoverbroad that virtually all of those questioned, registered or detainedhave proven to be innocent of any terrorist activity. Locking up severalthousand people with no connection to terrorism is hardly a cost-effectiveway to improve security."

Worse still, the wide net cast in an investigation based only on racial or nationalidentity, will certainly not yield those real terrorists who do not fit the ethnicprofile, and may not even detect those who fit the profile but whose involvement interrorist activities is less obvious than race or nationality.73

Cole suggests that the decision to target Arab and Muslim men for registration,interviews, arrest and deportation effectively labeled an entire, overwhelminglylaw-abiding community as suspect and turned the members of that community"from willing allies to wary adversaries."' This opinion has been widely shared.Khaled El Fadl, Professor and Distinguished Fellow in Islamic Law at UCLA LawSchool, has cautioned that "an important part of winning the war against terrorismis actively resisting and guarding against the alienation of any part of our citizenry. . . It is elementary that the more united our stand against terrorism, the moreeffective we will be."7 Similarly, Vincent Cannistrano, former chief of operationsand analysis at the CIA's Counterterrorism Center suggests that targeting Muslim

72. Cole, supra note 6, at 185.73. The danger of missing important pieces of evidence in such an indiscriminate investigation

has been emphasized by counterterrorism expert Juliette Kayyem of Harvard's John F. Kennedy Schoolof Government: "Ihe pure accumulation of massive amounts of data is not necessarily helpful,especially for an agency like the INS that already has trouble keeping track of things ...The idea that[the special registration program] has anything to do with security, or is something the government cando to stop terrorism, is absurd." LAWYERS' COMMITTEE FOR HUMAN RIGHTS, ASSESSING THE NEW

NORMAL, supra note 4, at 37.74. Cole, supra note 6, at 191.75. Khaled El Fadl, Statement to the National Commission on Terrorist Attacks Upon the United

States (Dec. 8, 2003), at http://www.9-1lcommission.gov/hearings/hearing6/witness_elfadl.htm (lastvisited Feb. 29, 2004).

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and Arab communities terrifies, angers, and drives into hiding the very people whocould most assist the investigations:

When we alienate the communities . . .we undermine the very basis ofour intelligence collection abilities because we need to have the trust andcooperation of people in those communities. If someone comes from theoutside who is a stranger, comes into the community, the people who arelong established in that community know it or are in a position to know it,and therefore to provide early warning information. But if the FBIconducts sensitive interviews with community leaders at the same timethat that community has been rounded up by the INS, forced to report, andeveryone forced to report knows that if they are illegal, they are not adocument holder, that they can and will be deported, you've really kind ofeliminated the ability to get information that you really need."6

Therefore, according to Cole and others, if there are terrorists hiding in the Araband Muslim communities in the United States, it is more likely that they will bediscovered if the government takes steps to engender trust and cooperation, ratherthan fear and outrage, among those living there. By failing to do this, and insteadsending a message that the fundamental rights of foreign nationals, especially Araband Muslim non-citizens, are expendable, the government has lost legitimacy inthese communities and squandered a valuable law enforcement opportunity.

This loss of legitimacy extends overseas, where the United States has beenwidely criticized for measures selectively targeting non-citizens and for anunwillingness to abide by rules that govern the rest of the world. Through itsfailure to heed its obligations under international law, its willingness to bypass theUnited Nations Security Council, and its prolonged detention of hundreds offoreign nationals, the United States has compromised its moral authority and itsability to maintain broad international support. These double standards, Colecontends, hinder international cooperation essential to identifying and capturingthose plotting against us. "Intelligence and law enforcement support will turn atleast in part on the extent to which we are fighting for a broad principle of justice,rather than for our own parochial self-interest."" Just as Benjamin Franklindeclared during the American Revolution that "[w]e fight not just for ourselves butfor all mankind," 78 Cole suggests that the United States must demonstrate that self-interest is not its only motive for action. Robert Kagan expressed a similarsentiment with his proposition that "[e]ven at times of dire emergency, and perhapsespecially at those times, the world's sole superpower needs to demonstrate that it

76. Comments of Vincent Cannistraro at the 26th Annual National Legal Conference onImmigration and Refugee Policy (Apr. 3, 2003), quoted in LAWYERS' COMMITrEE FOR HUMAN RIGHTS,AsSESSING THE NEW NORMAL, supra note 4, at 38-39.

77. Cole, supra note 6, at 195.78. See Robert Kagan, A Tougher War For the U.S. Is One of Legitimacy - Can America Afford

to Fight Its Enemies Without the Help of Its Friends?, N.Y. TIMEs, Jan. 24, 2004, at B7.

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wields its great power on behalf of its principles and all who share them. '79 To theextent that the United States abandons the principles of justice and democracy inthe war on terror, it risks a loss of legitimacy and a consequent loss of ground to itsenemies. Like other critics of the war on terror, Cole recognizes that the"'terrorists' greatest threat is to the survival of principle" and that our enemiesthrive when they succeed in forcing us to abandon our principles."0

Cole does not exaggerate when he asserts that the character of America'sfuture is at stake, and his criticism of American exceptionalism has been echoedaround the globe and at both ends of the political spectrum. The Department ofState has reportedly received complaints from many of the forty-two nations whosecitizens are being held in Camp X-Ray in Guantanamo,8 and the international presshas resoundingly condemned the post-September 11 treatment of non-citizens bythe United States government. 2 Judge Johan Steyn, a senior judge in Britain'sHouse of Lords, has called the United States' indefinite detention of alleged enemycombatants at Guantanamo Bay a "monstrous failure of justice." 3 The Economistmagazine declared America's abuse of power over the Guantanamo prisoners"unworthy of a nation which has cherished the rule of law from its very birth,"accused the United States of "alienating many other governments at a time whenthe effort to defeat terrorism requires more international co-operation in lawenforcement than ever before," and concluded that "America's casual brushingaside of the Geneva Convention . . . made America's invocation of these sameconventions on behalf of its own soldiers during the recent Iraq conflict soundhypocritical."" Indeed, according to Washington Post columnist Richard Cohen,"the word Guantanamo has become shorthand throughout the world for Americanarrogance and unilateralism." 5

Cole offers a number of concrete proposals for enhancing security withoutsacrificing principle or undermining legitimacy. Underlying each of hissuggestions is an admonition against any measure that unfairly burdens a minoritygroup with a loss of liberty in order to keep the majority safe. Measures which

79. Id. at B9 (emphasis added).80. Cole, supra note 6, at 197; see also Khaled El Fadl, Statement to the National Commission

on Terrorist Attacks Upon the United States, supra note 75.81. A Place in the Sun, Beyond the Law, ECONOMIST, May 10, 2003, at 12.82. See Legal Double-Standards Are Not the Way to Win a War Against Terrorism,

INDEPENDENT, Jan. 14, 2002, at 3, quoted in Cole, supra note 6, at 195 (stating "An effective campaignagainst terrorism requires the support, not just of Arab and Muslim countries, but of many othercountries in the developing world which are quick to sniff out Western hypocrisy. If the allegedterrorists detained in Guantanamo Bay are denied democratic standards of justice or treated inhumanely,the campaign will be seriously damaged.").

83. Jacobs, supra note 9. See also Johan Steyn, Guantdnamo: A Monstrous Failure of Justice,INT'L HERALD TRiB., Nov. 28, 2003, at 6 ("Democracies must defend themselves ...But in times ofwar, armed conflict or perceived national danger, even liberal democracies adopt measures infringinghuman rights in ways that are wholly disproportionate to the crisis. One tool at hand is detentionwithout charge or trial. Ill-conceived, rushed legislation is passed granting excessive powers toexecutive governments which compromise the rights and liberties of individuals beyond the exigenciesof the situation. Often the loss of liberty is permanent."

84. A Place in the Sun, Beyond the Law, supra note 81.85. Richard Cohen, Lawless in Guantanamo, WASH. POST, Jan. 20, 2004, at A19.

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result in increased airport security, tighter immigration restrictions and bordercontrol, or even potentially suspect limits on access to information about buildingweapons of mass destruction, but which inconvenience or restrict all of us equally,may strike an acceptable balance between liberty and security Cole suggests,because the political process can be expected to correct any excess or abuse. Onthe other hand, measures which distinguish between citizen and non-citizen, orsingle out a particularly vulnerable minority, come at a substantial cost in terms ofour legitimacy among those who might be our partners in the war on terrorism. Ina rare moment of agreement with John Ashcroft, Cole quotes the Attorney Generalback to himself: "To those who pit Americans against immigrants and citizensagainst noncitizens ...my message is this: Your tactics only aid terrorists... Theygive ammunition to America's enemies, and pause to America's friends.""6

DOING THE RIGHT THING

In his final chapter, Cole's arguments turn from the practical to the humanisticas he lays out his case for why the distinctions between citizen and non-citizenrelied on so heavily in the war on terror are just plain wrong. He sets forth acompelling argument for why such distinctions are neither constitutionally justifiednor consistent with international law. The rights and liberties which have beenunder assault in the war on terror - political and religious freedoms, due process,equal protection of the laws - are not privileges of citizenship, but are "inherent inwhat it means to be a free person with human dignity."87 Moreover, Cole reasonsthat trading non-citizens' basis human rights in the name of security is wrong as anormative matter. "When we balance liberty and security .. .we should respectthe equal dignity and basic human rights of all persons because it is the right thingto do."8 Our nation's overwhelming failure to do so in the wake of September 11,he warns, signals the loss of our own humanity.

Cole begins by challenging the widely held perception that non-citizens enjoymany fewer rights than do citizens, pointing out that the Constitutionpresumptively extends not just to citizens but to all who are subject to Americanlegal obligations and to all physically present in the United States.89 With theexception of the right to vote and to hold public office, the Constitution makes nodistinction between the rights of citizens and non-citizens and, Cole points out, the

86. Cole, supra note 6, at 208 (citing Department of Justice Oversight: Preserving OurFreedoms While Defending Against Terrorism: Hearings Before the Senate Committee on the Judiciary,107th Cong. 313 (2001)(testimony of Attorney General John Ashcroft).

87. Cole, supra note 6, at 11.88. Id. at 226.89. Although Cole does not specifically address the issue of whether the Constitution extends to

non-citizens detained in a military installation outside of the United States, the Guantanamo detaineeswould no doubt at least fall into the category of persons subject to American legal obligations. As thepetitioners in the Rasul and Al Odah cases have argued, the fact that the detainees are in a territory overwhich the United States has complete jurisdiction and control and where only U.S. law applies supportsthe extension of the Constitution to Guantanamo. Moreover, as discussed above, Cole is emphatic thatthe Guantanamo detainees are guaranteed certain fundamental rights under international law.

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courts have repeatedly recognized non-citizens' constitutional rights to due process,equal protection and free speech. Beyond the Constitution, Cole argues that thereare certain basic rights to which all persons are entitled by virtue of their humanityand points out that these rights - due process, equal protection, and politicalfreedoms - are recognized by international human rights instruments as applying tonationals and non-nationals alike.' Finally, he looks to the practice in other statesas the basis for a normative argument for extending fundamental rights to non-citizens. Cole offers several examples - from Sweden to Canada to Great Britainto Germany - of constitutional and statutory provisions granting equal rights andfreedoms to citizens and non-citizens alike. In light of this broad consensus, Colecontends that "the rights of political freedom, due process, and equal protection areamong the minimal rights that the world has come to demand of any society."'"

Beyond their humanity, Cole argues that non-citizens, by virtue of their lack offranchise and a history of anti-immigrant animus in the United States, areparticularly deserving of heightened protection of their fundamental rights. Unableto participate in a political process that has on numerous occasions in the pastignored and even obliterated the rights and interests of non-citizens, the case forextending the Bill of Rights to non-citizens is all the more compelling. Moreover,Cole argues the nature of the rights at issue - due process, equal protection,92 andpolitical freedom - provides no reasonable basis for distinguishing between citizensand non-citizens. Free speech promotes values and interests - autonomy, criticalthinking, self-expression, and curbing government excess - in which citizens andnon-citizens have an equal stake. Similarly, Cole argues, the interests at stakewhen the state seeks to deprive an individual of life, liberty, or property do notusually depend on the citizen/non-citizen distinction. "While the definition of mostconstitutional rights contains an implicit consequentialist balance, the balanceshould be struck equally for all - even if it might appear convenient or politicallytempting to strike it differently for some."93

CONCLUSION

Although President Bush declared in his State of the Union address that"because of American leadership and resolve, the world is changing for the

90. The Universal Declaration of Human Rights explicitly guarantees these rights to "allmembers of the human family." Cole, supra note 6, at 214, quoting RICHARD B. LILLICH, THE HUMANRIGHTS OF ALIENS IN CONTEMPORARY INTERNATIONAL LAw (1984), at 41. In addition, theInternational Covenant on Civil and Political Rights extends its protections to everyone "irrespective ofhis or her nationality or statelessness." Id., citing General Comment 15, The Position of Aliens Underthe Covenant, Human Rights Committee, U.N. Doc. HRI/GEN/I/Rev. I, at 18 (1994), 27th Sess., 1986,at para. 7.

91. Cole, supra note 6, at 215.92. Cole acknowledges that relevant differences between non-citizens and citizens do justify

some classifications based on alienage, but argues that beyond those limited differences noncitizens arepresumptively entitled to equal protection. Cole, supra note 6, at 227.

93. Id. at 222.

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BOOK REVIEW ESSA Y: ENEMYALIENS

better,"' Cole raises serious doubts about the legitimacy of that leadership.Contrary to the president's assertions, he suggests that in fact America's war onterror has irreparably harmed the lives of many vulnerable and innocent people.America has lost its credibility as the leader of the democratic world because,despite the President's declaration that "God has planted in every human heart thedesire to live in freedom,"95 time and again since September 11 our government hastrampled on the freedoms of foreign nationals in exchange for the freedom andsecurity of American citizens. Rather than leading the cause of freedom, Americahas sent the message that in times of crisis the rights and liberties of some can beselectively dispensed with. This hypocrisy, Cole argues, has come at the cost ofour security, our liberty, and our integrity as a nation. "How we treat foreignnationals, the paradigmatic other in this time of crisis," he concludes, "ultimatelytests our own humanity."" While on the one hand Cole optimistically challengesAmerica to learn from the lessons of history and to commit, in this war on terror, totreating the fundamental rights of citizens and foreign nationals equally, ENEMYALIENS, DOUBLE STANDARDS AND CONSTITUTIONAL FREEDOMS IN THE WAR ONTERRORISM offers a convincing albeit dismal assessment of how the United Statesis likely to fare on a test of humanity.

2004 State of the Union Address, supra note 1.Id.Cole, supra note 6, at 227.

2004]